Citation Nr: 1039576
Decision Date: 10/22/10 Archive Date: 10/27/10
DOCKET NO. 07-17 402A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana
THE ISSUE
Entitlement to a rating in excess of 10 percent for degenerative
joint disease of the lumbar spine.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Katie K. Molter
INTRODUCTION
The Veteran served on active duty from June 1985 to November
1990.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an April 2006 rating decision in which the RO, in
pertinent part, continued a 10 percent rating for the Veteran's
service-connected degenerative joint disease of the lumbar spine.
The Veteran perfected a timely appeal.
FINDING OF FACT
The Veteran's degenerative joint disease of the lumbar spine has
been manifested by forward flexion limited to 60 degrees, but
without any evidence of favorable or unfavorable ankylosis of the
entire or thoracolumbar spine, and the Veteran has not been
diagnosed with intervertebral disc syndrome (IVDS).
CONCLUSION OF LAW
The criteria for a rating of 20 percent for degenerative joint
disease of the lumbar spine have been met. 38 U.S.C.A. § 1155,
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6,
4.7, 4.40, 4.45, 4.59, 4.71, 4.71a; General Rating Formula for
renumbered Diagnostic Codes 5237- 5243 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
VA's duties to notify and assist claimants in substantiating a
claim for VA benefits are found in part at 38 U.S.C.A. § 5103
(West 2002 & Supp. 2009) and 38 C.F.R. §3.159 (2010).
VA's notice requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability, a
connection between the veteran's service and the disability,
degree of disability, and effective date of the disability.
Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases,
a claimant must be provided with information pertaining to
assignment of disability ratings (to include the rating criteria
for all higher ratings for a disability), as well as information
regarding the effective date that may be assigned. Id.
More recently, in Vazquez-Flores v. Peake (Vazquez-Flores I), 22
Vet. App. 37 (2008), the United States Court of Appeals for
Veterans Claims (Court) held that, at a minimum, adequate VCAA
notice requires that VA notify the claimant that, to substantiate
an increased rating claim: (1) the claimant must provide, or ask
VA to obtain, medical or lay evidence demonstrating a worsening
or increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life; (2) if
the diagnostic code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability rating
that would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the disability
and the effect of that worsening has on the claimant's employment
and daily life (such as a specific measurement or test result),
the Secretary must provide at least general notice of that
requirement to the claimant; (3) the claimant must be notified
that, should an increase in disability be found, a disability
rating will be determined by applying relevant diagnostic codes;
and (4) the notice must also provide examples of the types of
medical and lay evidence that the claimant may submit (or ask VA
to obtain) that are relevant to establishing entitlement to
increased compensation.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) vacated Vazquez-Flores I in Vazquez-Flores v.
Shinseki (Vazquez-Flores II), Nos. 2008- 7150, 2008-7115, 2009 WL
2835434 (Fed. Cir. Sept. 4, 2009). In Vazquez-Flores II, the
Federal Circuit held that the notice described in 38 U.S.C. §
5103(a) need not be veteran specific and does not require the VA
to notify a veteran of the alternative diagnostic codes or of
potential daily life evidence.
Compliant notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by the
agency of original jurisdiction (in this case, the RO and the
AMC). See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003). However, the notice requirements
may, nonetheless, be satisfied if any errors in the timing or
content of such notice are not prejudicial to the claimant. Id.
March 2006 and August 2008 letters fulfilled the notice
requirements as required by Dingess and Vazquez-Flores I and II.
Subsequent to the notice letters, the Veteran's claims were
readjudicated in an October 2008 supplemental statement of the
case.
There is no additional notice that should be provided, nor is
there any indication that there is additional existing evidence
to obtain or development required to create any additional
evidence to be considered in connection with the claims herein
decided. Consequently, any error in the sequence of events or
content of the notice is not shown to prejudice the Veteran or to
have any effect on the matters decided on appeal. Any such error
is deemed harmless and does not preclude appellate consideration
of the matters herein decided, at this juncture. See Shinseki v.
Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging
defective notice has the burden of showing how the defective
notice was harmful).
All relevant evidence necessary for an equitable resolution of
the issue remaining on appeal has been identified and obtained,
to the extent possible. The evidence of record includes VA
examination reports, VA treatment records, service treatment
records, identified private treatment records, and statements
from the Veteran and his representative.
The Board has carefully considered the provisions of the VCAA in
light of the record on appeal, and for the reasons expressed
above; it finds that the notice and development of the claim has
been consistent with these provisions. Accordingly, the Board
will proceed to a decision on the merits.
II. Pertinent Laws and Regulations
Disability ratings are assigned in accordance with VA's Schedule
for Rating Disabilities and are intended to represent the average
impairment of earning capacity resulting from disability. See 38
U.S.C.A. § 1155; 38 C.F.R., Part 4 (2010). When a question
arises as to which of two ratings shall be applied under a
particular diagnostic code, the higher evaluation will be
assigned if the disability picture more nearly approximates the
criteria for the higher rating; otherwise, the lower rating will
be assigned. See 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the Veteran's condition. Schafrath v. Derwinski, 1
Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of disability.
Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the
Board acknowledges that a claimant may experience multiple
distinct degrees of disability that might result in different
levels of compensation from the time the increased rating claim
was filed until a final decision is made. See Hart v. Mansfield,
21 Vet. App. 505 (2007). The analysis in the following decision
is therefore undertaken with consideration of the different
"staged" ratings assigned for the different time periods.
In November 2005, the Veteran filed a claim for an increased
rating for degenerative joint disease of the lumbar spine
(formerly rated as low back pain with spondlylolithesis).
Effective September 26, 2003, the evaluation of diseases of the
spine are evaluated using the General Rating Formula for Diseases
and Injuries of the Spine under Diagnostic Codes 5235-5243. 38
C.F.R. § 4.71a. This formula provides that, with or without
symptoms such as pain (whether or not it radiates), stiffness, or
aching, in the area of the spine affected by the residuals of
injury or disease:
10 percent evaluation is warranted where there is forward flexion
of the thoracolumbar spine greater that 60 degrees but not
greater that 85 degrees; or, forward flexion of the cervical
spine greater than 30 degrees but not greater that 40 degrees;
or, combined range of motion of the thoracolumbar spine greater
than 120 degrees but not greater than 235 degrees; or, combined
range of motion of the cervical spine greater than 170 degrees
but not greater than 335 degrees; or, muscle spasm, guarding, or
localized tenderness not resulting in abnormal gait or abnormal
spinal contour; or, vertebral body fracture with loss of 50
percent or more of the height,
20 percent evaluation is warranted where there is forward flexion
of the thoracolumbar spine greater that 30 degrees but not
greater that 60 degrees; or, forward flexion of the cervical
spine greater than 15 degrees but not greater that 30 degrees;
or, the combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, the combined range of motion of the
cervical spine not greater than 170 degrees; or, muscle spasm or
guarding severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or abnormal
kyphosis,
30 percent evaluation is warranted where there is forward flexion
of the cervical spine 15 degrees or less; or, favorable ankylosis
of the entire cervical spine,
40 percent evaluation is warranted where there is unfavorable
ankylosis of the entire cervical spine; or, forward flexion of
the thoracolumbar spine 30 degrees or less; or favorable
ankylosis of the entire thoracolumbar spine, a 50 percent
evaluation is warranted where there is unfavorable ankylosis of
the entire thoracolumbar spine, and
100 percent evaluation is warranted where there is unfavorable
ankylosis of the entire spine.
38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases
and Injuries of the Spine, Note (2) provides that, for VA
compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees; extension is zero to
30 degrees; left and right lateral flexion are zero to 30
degrees; and left and right lateral rotation are zero to 30
degrees. The combined range of motion refers to the sum of the
range of forward flexion, extension, left and right lateral
flexion, and left and right rotation. The combined normal range
of motion of the thoracolumbar spine is 240 degrees. The normal
ranges of motion for each component of the spinal motion provided
in this note are the maximum that can be used for calculation of
the combined range of motion. Id. 38 C.F.R. § 4.71a, Diagnostic
Code 5235-5243, Plate V (2010).
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion or
extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing; breathing
limited to diaphragmatic respiration; gastrointestinal symptoms
due to pressure of the costal margin on the abdomen; dyspnea or
dysphagia; atlantoaxial or cervical subluxation or dislocation;
or neurologic symptoms due to nerve root stretching. Fixation of
a spinal segment in neutral position (zero degrees) always
represents favorable ankylosis. 38 C.F.R. § 4.71a, The Spine,
General Rating Formula for Diseases and Injuries of the Spine,
Note
(5) (2010).
When evaluating musculoskeletal disabilities, VA may, in addition
to applying the schedular criteria, consider granting a higher
rating in cases in which a claimant experiences additional
functional loss due to pain, weakness, excess fatigability, or
incoordination, to include with repeated use during flare-ups,
and those factors are not contemplated in the relevant rating
criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.
App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and
4.45 are to be considered in conjunction with the diagnostic
codes predicated on limitation of motion (see Johnson v. Brown, 9
Vet. App. 7 (1996)).
III. Analysis
A March 2006 VA examination report shows that the Veteran
reported having pain that is always present and is described as
dull and aching in the sciatic area as well as two points in the
lumbar spine that is very sensitive to palpitation. Numbness was
noted in the left thigh and foot. The Veteran denied difficulty
with urination, bowels, or erectile dysfunction. He reported
flare-ups that occur once a week and for 3-4 hours in length.
Relief was achieved by stretching, heat, massage, and over the
counter medication. The Veteran indicated that he uses a back
support. He reported being able to walk half a mile without
needing to stop, sitting for two hours if able to change
positions, standing for 10-15 minutes, going up/down 1-2 flights
of stairs with mild difficulty, in/out car without problems,
riding in a car for two hours. The Veteran stated that he has a
difficulty flexing, putting his shoes and socks on, twisting,
scooping, pushing and pulling activities, uneven surfaces. He
denied being able to run, jump, or do physical sports. The
Veteran denied problems with loss of balance or falls and stated
that his upper extremity function was normal.
His gait was straight, stable, smooth, and symmetric. Upon
examination of the lumbar spine there was moderate tenderness
over the spinous processes and in musculature bilaterally at the
lumbar level. Forward flexion of the lumbar spine, both active,
passive, and with repetition, was to 60 degrees with pain
beginning at 60 degrees and active range of motion ending at 70
degrees. The Veteran was able to rock up on his heels and rise
up on his toes and take several steps forward without difficulty.
He is also able to tandem walk without loss of balance. X-rays
of the lumbar spine showed satisfactory alignment. There was
minimal loss of vertebral body height of partially visualized T
12. Endplate degenerative changes were noted at T12-L1. There
was loss of disc space at T12-L1 and L5-S1. There was suspicion
of bilateral spondylolysis at L5. The Veteran was diagnosed with
degenerative joint disease of the lumbar spine with mild
functional impact.
A September 2007 VA treatment record shows that the Veteran was
seen for a follow-up appointment for chronic low back pain. He
was assessed as having chronic low back pain and was given
Vicodin. Similarly, a January 2008 VA treatment record shows
that the Veteran was seen for a routine follow-up appointment.
He was assessed as having chronic low back pain and was continued
on Vicodin.
A March 2008 VA examination report shows that the Veteran
reported taking Vicodin four times a day for temporary relief of
his back pain. He reported experiencing flare-ups when he is
bending, lifting, or sitting for a prolonged period of time. He
denied any bladder or bowel issues related to his spinal
condition. The Veteran denied any history of surgery or epidural
blockage. During the last 12 months, the Veteran did not have
any incapacitating episodes or admissions to the hospital-
related to his lumbar spine condition. The Veteran had forward
flexion to 75 degrees, extension to 10 degrees, lateral bending
to the left and right was to 30 degrees and rotation to the left
and right was to 30 degrees. There were no spasms of the
paravertebral muscles. During repetitive motion of the lumbar
spine, the Veteran had increased pain, easy fatigability, lack of
endurance, and decreasing of flexion and extension of 5 degrees
or more. The examiner reviewed the previous x-rays and MRI
results and concluded that the Veteran had spondylolisthesis of
L5-S1 and degenerative disc disease of the lumbar vertebrae.
Given the medical evidence of record, the Board finds that the
Veteran is entitled to a 20 percent rating for his degenerative
joint disease of the lumbar spine. The March 2006 VA examiner
reported that the Veteran had forward flexion to 60 degrees with
pain beginning at 60 degrees. Pursuant to DC 5242 the Veteran is
entitled to a rating of 20 percent.
During the applicable appeal period, the Veteran has not shown,
at any time within the year prior to or since the filing of his
claim for increase in December 2005, to have unfavorable
ankylosis of the entire spine, favorable or unfavorable ankylosis
of the entire thoracolumbar spine, or forward flexion of the
thoracolumbar spine less than 30 degrees which would warrant a
30, 40, 50, or 100 percent rating.
The evidence of record does not show that the Veteran experienced
additional functional loss due to pain, weakness, excess
fatigability, or incoordination, to include with repeated use
during flare-ups, thus the Board finds that a higher rating, in
addition to applying the schedular criteria, is not warranted.
See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7. In
this regard the Board notes that the March 2006 VA examiner noted
that the Veteran experienced no additional loss of range motion
up repetitive motion. The March 2008 examiner noted that the
Veteran lost an additional 5 degrees in range of motion after
repetition. However, even considering the additional loss of
range of motion noted on the March 2008 examination report, the
Veteran would not be entitled to a higher rating.
Finally, the Board notes that any associated objective neurologic
abnormalities, including, but not limited to, bowel or bladder
impairment, separately, are to be evaluated under an appropriate
diagnostic code. 38 C.F.R. § 4.71a, The General Rating Formula
for Spine, Note (1). The Board notes that the Veteran was
assigned a separate 10 percent rating for his left lower
extremity radiculopathy which was noted in the March 2008 VA
examination report by virtue of a May 2008 rating decision. The
Veteran denied any bowel or bladder impairment at the March 2006
and March 2008 VA examinations, and as such, no additional
separate ratings for neurological abnormalities are warranted.
The Board has considered a rating under the Formula for Rating
IVDS Based on Incapacitating Episodes. However, the evidence of
record shows that the Veteran has not been diagnosed with IVDS
and during his March 2008 VA examination, the Veteran indicated
that there was no history of doctor prescribed bed rest with the
past twelve months, therefore a rating under 5243 is not
warranted.
It is clear from the clinical findings that the evidence of
record does not establish entitlement to a higher, 30 percent,
rating during the applicable appeal period. This is so because
the Veteran's symptoms never approximated the requirements for a
30 percent rating under the current rating criteria. In light of
the above, the Board finds that staged ratings pursuant to Hart
are not warranted. Hart, 21 Vet. App. 505.
Under 38 C.F.R § 3.321(b)(1), in exceptional cases where
schedular evaluations are found to be inadequate, consideration
of an extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities may be made. The governing
norm in an exceptional case is a finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical the
application of the regular schedular standards. See 38 C.F.R §
3.321(b)(1) (2010). Here, the rating criteria reasonably
describe the Veteran's symptoms and provide for additional or
more severe symptoms than currently shown by the evidence; thus,
his disability picture is contemplated by the rating schedule,
and the assigned schedular evaluation is, therefore, adequate.
See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Schedule
does provide for higher ratings for the Veteran's disability.
Moreover, as discussed above, the schedular criteria for higher
ratings have not been shown during the applicable appeal period.
The record does not reflect that the Veteran has required
frequent hospitalizations for his disability during the
applicable appeal period. In addition, there is no indication in
the record that his disability alone markedly interferes with his
employment-or daily activities, beyond what is contemplated in
the rating schedule. In sum, there is no indication in the
record that the average industrial impairment from this
disability would be in excess of that contemplated by the
assigned evaluation; it is not impractical to apply the regular
schedular standards. For these reasons, a referral for an extra-
schedular rating is not warranted.
ORDER
A rating of 20 percent for degenerative joint disease of the
lumbar spine is granted, subject to controlling regulations
applicable to the payment of monetary benefits.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs